GERMAN LAW JOURNAL
[Vol. 07 No. 04
this intervention was not to deny that there is a line to be drawn between the public and the private sphere, between “the state” and “society.” That would occur only later. The point was to challenge the way that line was drawn by the Civil Code as it was interpreted by the civil courts and to draw that line differently, in order, for example, to strike a more appropriate balance between the interests of employers and employees in their contractual relationship in an industrialized society. These line-drawing exercises were no longer thought of as appropriately within the jurisdiction of a professional elite of private law experts, but the task of a responsive and socially aware democratic legislator. The delimitation of spheres of liberty between equally ranked persons was reconceived as a political question, rather than a conceptual craft expertly performed by those schooled in the doctrines and history of private law.
In an important sense modern liberal constitutional democracies remain very much the “total state” that Schmitt polemically describes. Private law remains subject to political debate and regulation and any idea of a concrete “natural” baseline remains discredited, even if highly abstract principles, such as private autonomy, enjoy general recognition. The “motorized legislator” continues his work. As Habermas puts it, the scope and limits of private autonomy need to be determined by citizens exercising their public autonomy in a democratic process.64 Politically contested rules relating to topics as diverse as the rules relating to the work place, consumer protection laws, and product liability rules continue to redefine the scope and limits of private autonomy. One central feature of what Schmitt describes as the “total state” is simply the demise of a very particular and historically contingent understanding of a self-governing private law society. But if the politicization of private law within liberal constitutional democracies is one defining feature of 20th century private law, the constitutional assessment of political choices by a constitutional court is a central feature of law in liberal constitutional democracies at the end of the 20th century. If the generation of private law rules, either by the legislator or by courts interpreting abstract, ambiguous or indeterminate provisions of private law involves a political choice, and political choices are subject to constitutional rights review using proportionality analysis, why should decisions relating to private law be excluded from constitutional rights scrutiny? In a world where the generation of private law rules is conceived as a political question and the political process is constitutionally guided and constrained by constitutional rights, private law is necessarily constitutionalized. In Schmittian parlance one might say that the total state is complemented by the total constitution.
J. HABERMAS, Popular Sovereignty as Procedure, in BETWEEN FACTS AND NORMS 600 (1996).